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Friday, April 28, 2017

We write a lot about public records laws on this blog because the Illinois Freedom of Information Act affects so many aspects of government business and communications. Although not applicable to Illinois, it is interesting to see what our "neighbors" are doing in connection with their own state public records laws.

Recently, the Indiana state legislature passed a bill that would allow units of local government to charge the public an hourly fee to search for records in response to a public records request. The fee can be no more than (1) the hourly rate of the person doing the search or (2) $20.00. The first two hours of search time must be provided at no charge, and then an hourly fee could be applied to any search in excess of two hours. The bill also required governments to provide electronic versions of documents, if requested. Indiana House Bill 1523.

The bill was approved 63-27 in the Indiana House and 44-3 in the Indiana Senate. On Monday this week, Indiana Governor Holcomb vetoed the bill. It has been reported that although the Governor supported the provisions of the bill that dealt with the provision of electronic records, he opposed the search fee.

Thursday, April 27, 2017

The Public Access Counselor of the Illinois Attorney General's office issued its second opinion for 2017 last week. PAC Op. 2017-002. This opinion involved a FOIA request filed by a reporter seeking a copy of a police report of a police pursuit. The public body did not respond to the request, and the reporter filed a request for review. The public body's FOIA officer told the PAC that she had forwarded the FOIA request to the public body's attorney and police department for response, but neither the attorney nor the police department responded or provided the records to the requester.

Not surprisingly, the PAC found the public body in violation of FOIA for not responding to the request or providing the requested record.

So, public bodies must respond to FOIA requests. No new guidance in this binding opinion.

The article offers some guidance to government employers in disciplining their employees for social media conduct, and discusses some of the legal issues in enacting social media policies. The examples of employees being disciplined for off-duty social media activities used in the article are a good reminder to government workers that their off-duty social media activities could result in discipline.

The author notes that although government workers have First Amendment and other rights to engage in social media speech, those rights do not extend to everything an employee might post on social media. The article sets out the general legal standard that applies to government employee speech, as follows:

For years, courts first asked whether a public employee spoke on a matter of public concern or importance. If the speech is merely a private grievance, a First Amendment claim fails, because the speech doesn’t carry much importance for the public at large. If the speech touches on matters of public concern, then the court balances the employee’s right to free speech against the employer’s interests in an efficient, disruption-free workplace.

To determine whether a public employee’s speech is too disruptive, a court asks whether it affects close working relationships, interferes with the employer’s normal operation of business or impairs discipline on the job.

Although there are only a handful of reported cases on government employee social media conduct, they do consistently apply this standard to determine whether an employer lawfully disciplined or terminated an employee for off-duty social media activities.

You may remember that we reported on a 4th Circuit Court of Appeals opinion earlier this year that involved a disciplinary action brought against two police officers based on a police department social media policy that prohibited "[n]egative comments on the internal operations of the bureau, or specific conduct of supervisors or peers that impacts the public's perception of the department..." The court of appeals struck down the police department policy as overly broad because it would encompass the type of protected speech that falls within the legal standard discussed above. You can read our previous post about that case here.

The “conduct order” in
question regulated on and off duty conduct by employees and for the first time
included language extending the rule to social media and networking sites. The
order required employees to conduct themselves in a professional manner and not
bring disrepute on the department. While a conduct rule had historically
existed, the Sheriff’s Office amended it to include the following language:

Be aware
that conduct on and off duty extends to electronic social media and networking
sites and that all rules of conduct apply when engaging in any Internet
activity.

The union filed an unfair labor practice charge against the
Sheriff alleging that the new rule was overbroad and violated employee rights
under the Illinois Labor
Relations Act. According to the union, the order had a chilling
effect on protected union activity. For instance, employees often vent about
working conditions on social media platforms with other employees and this
communication may be protected union activity, but the union argued that an employee could be
subject to discipline for legal activities under the new language.

The Local Labor Relations Board held that the conduct order was
not substantively different from a 1998 order issued by the Sheriff regulating
off duty conduct. The new order simply applied it to contemporary means of
communication. Additionally the Board found that no employee had been
disciplined under the rule for communications protected under the Labor Act.

The union appealed and the court agreed with the conclusion of
the Local Labor Board but stated that this is a case of first impression as to
whether any employer work rule violates the Labor Act because it is overbroad on
its face. In interpreting the state law, the court looked to National Labor
Relations Act for assistance. Under the NLRB decisions, a workplace rule that
does not specifically prohibit protected communications may still violate the
act if a reasonable employee believes protected communication is prohibited
under the rule. However, in this case, the court said this is not a subjective test based on the
employee’s interpretation. Instead, the court stated: “We will not conclude that a
reasonable employee would read the rule to apply to such activity (protected
activity) simply because the rule could be interpreted that way.”

Employers should
consult with their attorney before implementing rules governing social media
conduct. Even facially neutral rules may impinge on protected employee rights
if not properly implemented.

Monday, April 24, 2017

We have mentioned in the past that the Public Access Counselor's advisory (non-binding) opinions often offer public bodies and members of the public more insight on FOIA and OMA than the PAC's binding opinions. For example, the PAC recently issued an advisory opinion on how the fee waiver provision of FOIA is to be interpreted. 2017 PAC 47258.

A reporter for ABC7 News had filed a FOIA request seeking records pertaining to a public body's red light camera program. The public body compiled the records and informed the reporter that a fee of $30.60 would be owed for the records (that fee amount was calculated after providing the first 50 pages at no cost). The reporter disputed the charge by immediately filing a request for review with the PAC, claiming that the public body was obligated to waive its fee for the records.

The public body argued that section 6(c) of FOIA provides discretion to the public body as to whether to grant a fee waiver or reduction, citing the following language: "[d]ocuments shall be furnished without charge or at a reduced charge,as determined by the public body, if the person requesting the documents states the specific purpose for the request and indicates that a waiver or reduction of the fee is in the public interest." 5 ILCS 140/6(c) (emphasis added).

The PAC issued an advisory opinion finding in favor of the public body, stating as follows:

Under the plain language of section 6(c), FOIA does not require a public body to grant fee waivers; instead FOIA provides a public body the discretion to decide whether it will waive or reduce copying fees. See e.g., Ill. Att'y Gen. PAC Req. Rev. Ltr 22787, issued July 17, 2013, at 2. Because the Public Access Counselor does not have authority to direct the City to grant ABC7 News' request for a fee waiver, we conclude that no further action is warranted as to this matter.

In sum, according to the PAC office of the Attorney General, the fee waiver/reduction provision of FOIA is discretionary, not mandatory, which is consistent with the express language of section 6(c).Disclaimer: Ancel Glink represented the public body in this matter.

Friday, April 21, 2017

For those of you who are planning to attend the 2017 American Planning Association (APA) National Planning Conference in NYC from May 4th to 9th, please stop by to say hi to Ancel Glink attorneys David Silverman and Dan Bolin who will be speaking at the following sessions:

Sunday, May 7, 9:30 a.m. - 11 a.m.

Ordinances: Best Practices to Follow, Pitfalls to Avoid

David Silverman is participating in this session

Sunday, May 7, 4 p.m. - 5:15 p.m.

ERR BNB - The Influence of a New Economy on Everything from
Zoning to Market Analysis

Thursday, April 20, 2017

A federal court recently decided an interesting case which could have occurred in any
governmental body in the United States.The case was decided by the Third Circuit Court of Appeals and is called Mirabella v. Villard.

The Mirabella
family petitioned their local township government for assistance in a dispute
with neighbors and threatened to sue the government. The dispute revolved around a wetland owned by Montgomery Township and abutting the Mirabellas and neighboring property. The Mirabellas allege that their neighbors extended their backyards into the public wetlands by attempting to fence in the open space and place playground equipment there and landscaping it. The Mirabellas complained to the Township which removed the fence and required the neighbors to move their playground equipment and initially required the neighbors to stop landscaping the open space. The Mirabellas, however, alleged that their neighbors continued to cut and clear the open space and continued to complain about this, but the Township ultimately reversed course and gave the neighbors permission to mow the open space.

The Mirabellas viewed the Township’s response as overly permissive and environmentally destructive.They notified the Township Board of Supervisors by email that they intended to sue their neighbors for encroachment and destruction of the open space.They criticized the Township for not protecting its rights in the land.They also indicated they would name the Township as a party in the lawsuit.

On the same day the Mirabellas threatened litigation, the Chairperson of the Board of Supervisors wrote to the attorney for the Township and copied the Mirabellas. The official claimed that such a lawsuit would be frivolous and wanted to let the parties know that the Township would seek sanctions if the case was filed. The Mirabellas, both lawyers, responded that they felt that they had a strong case. Later that night, the Chairperson of the Board of Township Supervisors replied to the Mirabellas as follows:

Please direct all further communications to the Township attorney. Please never contact me, the Board of Supervisors or the Township employees directly. Do not call me at work, email me at home or speak to me in public or private. The die is caste (sic).

The Mirabellas did attend one meeting of the Board of Supervisors at which they protested the destruction of the open space and expressed their “dismay and anger” over the emails.

The Mirabellas subsequently filed suit, alleging that the
Township officials had violated their First Amendment rights by retaliating
against them and cutting off their right to petition the government for redress
of grievances.The district court denied the Township officials' motions to dismiss and said that Township officials were
not entitled to qualified immunity.

The Township officials then appealed to the Third Circuit arguing they had done nothing wrong and were entitled to qualified immunity.

The Third Circuit first held that the email to the Mirabellas barring them from communicating directly with their local government, for any reason and indefinitely, “was sufficient to deter a person of ordinary firmness from exercising constitutional rights.”The Court stated that the “no contact” email was a direct violation of their First Amendment right to petition the government for redress of grievances, holding that citizens have the right to petition any department of government including the right to do so taken in anticipation of litigation. The Court pointed out that governments do have the power to place certain reasonable “time, place or manner” restrictions on speech, but governments may not restrict speech “in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.” The restrictions on speech must also “leave open ample alternate channels for communication of the information.” The Court then pointed out that the government itself bears the burden to demonstrate that the restriction is constitutionally permissible, but the Township could not satisfy that burden because they imposed an absolute ban on contact.

Although the Court agreed with the Mirabellas that the Township's ban on contact with Township officials was a constitutional violation, the Court nevertheless held that the Township officials were immune from liability because a reasonable government official may not have known that imposing a "no contact" rule was unconstitutional.

Now that the court has indicated that this is
an area where private citizens may be able to sue their government, it puts
officials on notice that even angry citizens have substantial constitutional
rights.

Wednesday, April 19, 2017

A tattoo
artist, James Real, wanted to open a parlor in Long Beach, California. However, Long Beach’s zoning
ordinance restricted the location of tattoo parlors and required a
conditional use permit. Real sued the City arguing that its zoning
laws restricted his First Amendment rights.
The district court ruled in favor of the City and Real appealed.

On appeal, the Ninth Circuit Court of Appeals reversed the lower court, and held that Real did have standing to challenge the zoning restrictions on tattoo parlors. Real v. City of Long Beach (9th Cir. Mar. 29,2017). The Court found that Real sufficiently alleged that the ordinance impermissibly restricts an activity protected by the
First Amendment and that there would be a creditable threat of prosecution if he
opens the tattoo parlor without obtaining the required conditional use permit. The Court held that he did not have to wait until he was denied a conditional use to challenge the ordinance.

In addition, the Court held that the City’s conditional use process gave government
officials too much discretion over protected activity (expressive speech) and did not provide any
procedural safeguards, which amounted to a prior restraint on
speech.

The Court remanded the case back to the district
court for further proceedings on Real's claim that the City ordinance was an unlawful time, place, and manner restriction.

Tuesday, April 18, 2017

Yesterday, Illinois HB 4034 was introduced. If enacted, it would create the Airline Passenger Protection Act, which would prohibit any state or municipal employee or contractor from involuntarily removing a ticketed passenger from an aircraft by force unless the following exists:

1. The passenger has committed a breach of the peace;

2. The passenger presents a danger to himself or herself or others; or

3. A public emergency exists.

The Act also prohibits the state of Illinois and Illinois units of local government to make any travel arrangements with or do any business with any airline that has a policy allowing involuntary removal of a passenger from a plane to accommodate an employee who is traveling on a non-revenue ticket.

The bill was just introduced, so there is no history on it yet. Since this bill would affect government police department activities, as well as government employee travel, we will keep an eye on it.

From 1997 to
2015, the Birdville Independent School District (BISD) has allowed elementary
or middle school students to deliver statements at the opening of each board meeting. In some cases, the students read poems or
essays, but on occasion, a student read a Christian prayer. In 2015, American Humanist Association (AHA)
and a BISD alum Isaiah Smith, filed suit claiming the invocations violated the
Establishment Clause of the First Amendment to the U.S. Constitution. The district court
ruled in favor of the school district, finding that the legislative prayer
exception applied. AHA and Smith filed
separate appeals.

The legislative
prayer exception allows prayers to be given at legislative proceedings and
town-board meetings. However, as a general rule, prayers in public schools did not fall under the exception. The issue before the court was whether a school
board meeting is more like a legislative proceeding or a school activity. In the court’s view, school board meetings (which took place away from school
grounds, dealt with administrative issues, and did not involve students as
mandatory deliberative participants) were more like legislative proceedings than school activities. As a result, the court of appeals agreed with the district court decision allowing student invocations to be read at school board
meetings.

In a
recent decision from the National Labor Relations Board, an administrative law
judge addressed whether a laid-off employee’s Facebook photos and comments,
which were critical of her employer’s pay and workplace condition policies,
could be used in the employer’s decision not to rehire the employee.

Strain, a former sales employee at Natural Life, claimed the
company engaged in unlawful surveillance by checking her Facebook page. A company manager (Guggia) had heard that Strain was
posting “horrible things” about her on Facebook. Guggia, who was Facebook friends with Strain, looked
and saw that Strain had made negative comments about the company and its owner.
Guggia specifically recalled Strain commenting that “she had something
for their ass.” Strain made other comments in which she claimed that her
employer was racist and stealing from her paycheck. Based on those
negative Facebook posts, Guggia chose not to rehire Strain, and Strain's complaint went to the NLRB.

The case included a number of claims, including that the company (1) engaged in unlawful surveillance of Strain's Facebook page; (2) unlawfully listened to employee phone calls; and (3) improperly terminated Strain and co-workers for engaging in protected concerted activities.

First, the administrative law judge dismissed Strain’s unlawful surveillance claim,
finding that Guggia looked at Strain’s Facebook to determine what Strain was
saying about her individually. Guggia’s action was not enough to
establish that the company had engaged in surveillance of its employees in an
effort to discover their protected concerted activities.

The case also included an allegation that the company
unlawfully listened in and recorded phone calls between its employees. In
contrast to Strain’s Facebook claim, the administrative law judge found that
the company did engage in unlawful surveillance when it snooped through the
phone calls since the employees were discussing taking legal action against the
company. In his opinion, the administrative judge reminded the company
that “[t]filing of an employment—related class or collection action relating to
terms and conditions of employment is protected activity.”

Finally, the
administrative law judge held that the company had improperly terminated
Strain and several of her colleagues because they engaged in protected
concerted activities. At a meeting prior to the employees’ discharges,
Guggia made several comments about the employees’ conversations in regards to
filing a lawsuit and their complaints about the terms and conditions of their
employment. The company failed to set forth persuasive, lawful reasons
for the terminations. Strain, as well as several other employees, was
awarded reinstatement and back pay due to the unlawful terminations.

This
decision serves as a good reminder for what constitutes as unlawful
surveillance of concerted activities under the National Labor Relations Act. Observing employees engaged in protected conduct in a manner that is
“more than ordinary or casual,” can be considered coercive. The decision
also provides some further insight regarding the how the NLRB is addressing
workplace-related comments published on various social media platforms.

Thursday, April 13, 2017

I just returned from the third annual Government Social Media Conference (#GSMCON2017), where government officials and employees from across the country discuss new strategies for engaging their citizens and constituents. There were so many great sessions and I was pleased to participate in a session on legal issues with government use of social media. Some of the discussion at that session centered on strategies for dealing with impostor sites - i.e., Facebook or Twitter accounts that deliberately mislead the public into believing they are the official site.

One strategy that any government site can implement very easily is to "verify" their page. Facebook, Twitter, and Instagram all offer verification - you know an account is verified when you see the blue check mark. That check mark is not just for celebrities - these social media platforms offer verification for government entities. (Facebook was even offering to verify government pages on-site at the conference).

If you are concerned about impostor sites or just want to make sure your visitors know they are on your "official" page, verification is a relatively painless process. Look out for the blue check mark.

Wednesday, April 12, 2017

Every two years, we receive a lot of questions about when newly elected municipal officials (city council and village board) take office. There is a statute that governs this, and it provides as follows:

(65 ILCS 5/3.1-10-15)

Sec. 3.1-10-15. Commencement of terms. The terms of elected municipal officers shall commence at the first regular or special meeting of the corporate authorities after receipt of the official election results from the county clerk of the regular municipal election at which the officers were elected, except as otherwise provided by ordinance fixing the date for inauguration of newly elected officers of a municipality. The ordinance shall not, however, fix the time for inauguration of newly elected officers later than the first regular or special meeting of the corporate authorities in the month of June following the election.

Under this statute, the general rule is that new elected municipal officers will be sworn in at the first board or council meeting after the county sends the certified election results to the municipality. While timing for each county's certification process will be different, historically, most municipalities receive results in mid to late April, and install their new members at their first meeting in May.

Don't forget, however, to check your own local ordinance or code to see if your municipality has adopted a local rule on when new members should be installed. That ordinance will control unless it establishes an installation date later than the first meeting in June. So, for example, if you receive certified election results on April 20th, and your ordinance sets the installation of new members at the 2nd meeting in May, then that ordinance controls and new members should be sworn in at the second meeting in May and not the first meeting.

Because this varies from municipality to municipality, if you have any questions, you should run them by your village or city attorney.

Tuesday, April 11, 2017

A recent Illinois Appellate Court case found that municipal
ordinances are not considered “state law” under Section 7(1)(a) of FOIA.

In
City of Chicago v. Janssen Pharmaceuticals, Inc., 2017 IL App (1st)
150870 (March 31, 2017), the City of Chicago sent a subpoena to Janssen to
obtain documents relating to a false claims investigation regarding Janssen’s marking of opioids. Janssen did not comply with the
subpoena, and the City filed a lawsuit. The
parties entered into a protective order, which provided that the information
produced by Janssen could only be used in accordance with Section 1-22-050 of
the False Claims Chapter of the Chicago Municipal Code (“ordinance”), or by
court order. The protective order further provided that information
produced by Janssen could be confidential and that Janssen considered it to be
exempt from disclosure under FOIA.

The City then withdrew its Petition to Enforce the subpoena
and Janssen produced over 100,000 pages of documents to the City, many of which
were marked “confidential.” The City filed another suit against
Janssen alleging violations of the ordinance. USA Today then issued a
FOIA to the City to obtain copies of documents in support of the claims
against Janssen. The City notified Janssen of USA Today’s FOIA request
and stated that it believed three documents were responsive.

Janssen then filed a motion to enforce the protective order,
arguing: 1) that the order required the City to deny third party request
brought under FOIA, 2) that the documents were exempt from disclosure under
Section 7(1)(a) of FOIA as the ordinance qualified as “state law,” which was
prohibited from disclosure, and 3) that the documents were exempt under 7(1)(g)
of FOIA as production of confidential information would make it more difficult
for a public body to obtain similar information in the future, creating a “chilling
effect.” The circuit court denied Janssen’s Motion, and Janssen appealed
to the Illinois appellate court.

On appeal, the court affirmed. The court first
evaluated Section 7(1)(a) of FOIA, which exempts information specifically
prohibited from disclosure by federal or state law. Janssen argued that
the ordinance qualified as state law, and was expressly prohibited from
disclosure under 7(1)(a). Janssen argued that as a home rule unit,
the City has the same power as the state to legislate FOIA exemptions. The court found that the phrase “state law” must be given its plain and
ordinary meaning, which excludes municipal ordinances. Since “state law” does not include municipal ordinances, the court held that the
documents were not exempt under 7(1)(a).

The court next analyzed Janssen’s 7(1)(g) argument, that the
disclosure of its documents would have a “chilling effect” on other organizations
complying with a subpoena issued by the City. The court similarly
rejected this argument, finding that Janssen failed to assert why the
disclosure of information would cause it competitive harm.

Monday, April 10, 2017

Every two years, Ancel Glink publishes a Handbook for Newly Elected Officials to coincide with the election of many Illinois local government officials (which happens in odd years). We just released our 2017 edition of this Handbook, which you can download for free from Ancel Glink's website in the Resource Center.

This Handbook provides timely and timeless information about a number of topics of interest to elected officials. The following is a list of the articles included in the handbook:

The Open Meetings Act: Don’t Leave
Home Without It

The Freedom of Information Act: A
Primary Duty of Public Bodies

The Rules Are the Game

Taxing and Spending

Understanding and Avoiding Conflicts
of Interest

The Gift Ban Act and Prohibited
Political Activities

You’re The Boss Now! Labor and
Employment Issues

An Outline of the Governmental
Construction Process

Suing and Being Sued

How to Avoid Being Sued

Working Together—The
Intergovernmental Cooperation Act

Technology: What a Tangled Web-Page
We Weave...

Cooperating on Economic Development

ANCEL GLINK’S Top Ten List

25 Challenges and Opportunities for
Experienced and New Mayors,

10 Lessons Learned by a Former
Elected Official

The Magic Governmental Mix

The Ancel Glink Library

How to Choose a Governmental Attorney

Representing Smaller Governments

Distressed Developments; Addressing
the Impacts and Recognizing the Opportunities

Friday, April 7, 2017

Last
week, an Illinois appellate court held that “People for a Safer Society” (“PFSS”)
will be allowed another opportunity to file an amended complaint to establish
the group’s standing to challenge the Village of Niles’ approval of a special
use permit for “Howard Venture,” a business with firearm sales, an indoor
firing range, and firearms safety training.

After
the Village approved Howard Venture’s special use permit, area residents and
PFSS filed a lawsuit claiming that the zoning approvals were unconstitutional
as applied to them. The plaintiffs were not adjacent or adjoining property
owners. The trial court dismissed the amended complaint for lack of standing,
and for failing to identify any particular harm they suffered from the approval.

The
appellate court stated that plaintiffs are required to assert a “special” harm
that differs from the harm suffered by the general public in order to establish
standing for their lawsuit challenging the rezoning of a third party’s property.
Although the four individual plaintiffs owned businesses in close proximity to
the Howard property, the court held that they failed to establish how their
harm differed from other individuals residing and working within a two-mile
radius of the Howard property. Proximity to a rezoned property alone was
insufficient to provide the individuals with an interest beyond that of the
general public, so the individual plaintiffs lacked standing.

As
to PFSS’ standing to remain in the case, it had alleged that one of its
members, New Hope Academy, would have to relocate its school if the gun shop is
allowed to open. The court held that PFSS’ conclusory allegation that the
school would relocate was too speculative and remote but allowed them to file a
second amendment complaint alleging more facts to support their cause of action.

Thursday, April 6, 2017

The Illinois Supreme Court has granted the Chicago Park District's petition for leave to appeal in a case that may have significant implications
for units of local government that maintain bike paths.

In Cohen v. Chicago Park District, 2016 Il
App (1st) 152889, the plaintiff was riding his bike on the Lakefront
Trail near the Shedd Aquarium when his wheel became caught in a crack in the
concrete. The crack was approximately
three to four feet long, three to four inches wide, and two to three inches
deep. Cohen was injured and sued the
Park District for willful and wanton conduct.

At trial, the court granted the Park District’s motion for
summary judgment, finding the District was immune under Section 3-107(a) of the
Tort Immunity Act, which grants absolute immunity from injuries caused by a
condition of a “road which provides access to fishing, hunting, or primitive
camping, recreational or scenic areas.”
Additionally, the trial court found that, even if section 3-107(a) did
not apply, the Park District was immune under section 3-106, which provides
immunity from injuries occurring on recreational areas, unless the governmental
entity has engaged in willful and wanton conduct.

The appellate court reversed the trial court’s grant of
summary judgment, finding, first, that section 3-107(a) immunity applies only
to access roads to primitive recreational and scenic areas, and not to the
Lakefront Trail. Additionally, the
appellate court held that the question of whether the Park District may have
engaged in willful and wanton conduct was a question of fact for a jury to
determine. The plaintiff had presented
evidence that the Park District was aware of the defect in the Lakefront Trail
prior to the plaintiff’s injuries.
Consequently, according to the appellate court, it was not appropriate for the trial court to hold as a
matter of law that the Park District was not willful and wanton.

The Park District appealed the appellate court's ruling, and the District's appeal will be heard by the Illinois Supreme Court. We will report on the Illinois Supreme Court’s decision in
this matter when it becomes available.

The case involved a lawsuit filed by Kimberly Hively against her employer, Ivy Tech Community College. Hively was a part-time adjunct professor at the college who had applied six times, unsuccessfully, for a full-time position from 2009 and 2014. In 2013, she filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging that she was being discriminated based on her sexual orientation. In 2014, after she filed her charge with the EEOC, her part-time contract was not renewed.

She received her right-to-sue letter and filed her lawsuit in the district court. That court granted the college's motion to dismiss, on the basis that sexual orientation is not a protected class under Title VII of the Civil Rights Act. She then appealed to the Seventh Circuit Court of Appeals.

The Seventh Circuit first acknowledged that the U.S. Supreme Court and the other circuit courts of appeals have not recognized sexual orientation to be part of Title VII's sex discrimination protection.

The Court framed the issue before it as not whether the Court should "amend" Section VII to add a new protected category, but instead whether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex, which is protected under Section VII. In the Seventh Circuit's view, that answer is yes, because, as the Court states in the Hively opinion, "it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex..." As a result, the Court overturned the district court's dismissal of Hively's complaint against her former employer, holding that "a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes."

There were separate concurring opinions that agreed with the majority decision finding in favor of Hively, but suggesting the outcome should be based on other grounds. The dissenting opinion argued that the majority's opinion effectively amended Title VII, and that power should remain with the legislative branch rather than the courts.

Tuesday, April 4, 2017

Today, is Election Day in Illinois so we offer a "Q&A" about employees and voting rights.

Question: Several of my employees have indicated they want to take an hour off during Election Day to vote. Do I have to allow them to use time off to vote?

Answer: Although there is no federal law that requires employers to give employees time off to vote, Illinois has adopted a law that requires employers to give employees two consecutive hours of paid time off on the day of an election in order to vote. The time off can only take place during the time polls are open - in this case, from 6:00 a.m. to 7:00 p.m.

The law does not apply to early voting, and also does not apply to employees who are not required to work for a two hour period after the polls open or before they close. So, an employee who works a 10:00 a.m. to 3:00 p.m. shift would not be able to request two hours off to vote. Employees must request the time off prior to Election Day (not on Election Day), and employers can generally specify which two hours their employees can take off to vote.

Monday, April 3, 2017

The Public Access Counselor of the Illinois Attorney General's office recently issued its Annual Report for 2016. The report provides information about the number of inquiries and requests for review received by the PAC office, and summarizes the binding opinions for 2016. Here are the highlights:

In 2016, the PAC received more than 4,500 requests for assistance from members of the public and the media. 4354 related to the Freedom of Information Act (FOIA) and 366 related to the Open Meetings Act (OMA)

The PAC issued 15 binding opinions in 2016.

The PAC fielded between 15 to 20 questions per day through its FOIA phone hotline, and responded to more than 300 inquiries through the PAC email.

The PAC conducted 15 training sessions.

The Annual Report includes a summary of all 15 of the binding opinions issued in 2016. As long-time readers know, we report on all of the binding opinions throughout the year and then summarized all 15 opinions in these two posts: here and here.

The Annual Report also includes a summary of a few of the PAC's non-binding determinations (i.e., advisory opinions) issued in 2016. Interestingly, the PAC only chose a handful of advisory opinions that ruled against the public body. In this author's opinion, this type of one-sided reporting misleads the public to believe opinion that public bodies are generally not transparent. As we have reported in the past, many of the advisory opinions issued by the PAC rule in favor of the public body. Unfortunately, because the PAC refuses to publish these advisory opinions on its website, the public is not made aware of these opinions. Instead, the PAC releases an Annual Report that is silent about these "other" opinions - those in which the public body followed FOIA or the OMA - and instead focuses exclusively on opinions that rule against public bodies.

In the future, I hope that the PAC can be more transparent in its reporting. That would seem to be in the best interest of everyone, as full disclosure of all of the PAC's determinations could assist public bodies in complying with these two laws and provide the public with a fuller picture of the PAC's rulings and determinations.